[Continental Insurance Co. v. Parkes.] defendant before the loss occurred. Held: that said plea is fatally defective in failing to show notice to the assured of defendant's intention to cancel the policy. Held further, that notice to the mortgagee would not be sufficient notice to entitle defendant to cancel, but such notice must have been to assured. 5. Same; same; right of Insurance Company to cancel policy strictly construed against Company.-A provision in an insurance policy reserving to the insurer a right to cancel same is strictly construed and the conditions imposed upon it with respect to giving notice of cancellation must be strictly performed. 6. Same; same; what sufficient notice of loss to an insurance company. Where a policy of insurance provides that if a fire occur the insured shall give immediate notice of any loss thereby in writing to the company, an allegation that the insurance company had actual notice of the loss within fortyeight hours after the fire is not a sufficient allegation of notice by the insured. 7. What considered not a waiver of provision in policy requiring notice of loss.-Where a policy of insurance provides that if a fire occurs the insured shall give immediate notice of any loss thereby in writing to the Company, a statement by the local agent of the Company to the assured that the policy had been cancelled before the loss and that the Company denied liability thereunder does not constitute a waiver by defendant of the notice required by the policy unless the agent had authority to bind the Comrany by his statement. 8. Statutory provision that Insurance Company belonging to a tariff association pay penalty not unconstitutional.-Section 2619 of the Code of Alabama providing that in case of loss an insurance policy issued by an insurer who belonged to or was a member of or in any wise connected with any tariff association or such like thing by whatever named called, etc., shall be construed to mean that the assured or beneficiary thereunder may in addition to the actual loss or damage suffered recover 25 per cent. of the amount of such actual loss, any provision or stipulation to the contrary in the policy not'withstanding is a legitimate exercise of the police power of the State. 9. Same. Such statutory provision is not violative of the constitutional provision for singling out particular persons or corporations and discriminating against them. 10. Same; said provision applies to foreign Insurance Companies as well as domestic.-The fact that the insurer happens to be a foreign corporation does not render the provision unconstitutional or void as to it. [Continental Insurance Co. v. Parkes.] 11. Same; same; insurance companies are not engaged in inter-state commerce.-Insurance companies organized in other states and issuing policies in this State are not engaged in interstate commerce, nor are the contracts of insurance entered into by such companies in this State inter-state transactions. 12. Authority of agent to waive written notice provided for in policy; when such authority question of fact for the jury. Where the local agent of an insurance company performs acts at various times not expressly conferred by the instrument appointing it as agent and such acts were recognized by the principal as within the authority of the agent and were not repudiated by it, it is a question of fact for the jury to determine whether or not the agent had authority to waive for defendant company a provision in the policy requiring written notice of loss to be given immediately after a fire occurred. 13. Same; what sufficient waiver of notice.-If the local agent had authority to bind its principal a distinct denial of defendants liability because the policy had been cancelled would be a waiver of notice and proof of loss required of the assured by the policy. APPEAL from the City Court of Birmingham. Tried before the Hon. WILLIAM W. WILKERSON. This action was brought by the appellee against the appellant to recover upon a policy of fire insurance. The defendant pleaded the general issue and in addition thereto many special pleas among which special pleas were the following: 8. "And for further piea in this Lehalf the defendant says the plaintiff ought not to recover in this action upon the contract sued on by reason of anything alleged in the complaint. 9.—And for further answer this defendant says that in and by the terms of the policy described in the complaint it is provided that the contract named in the complaint may be cancelled. And this defendant says that in accordance with the terms of said policy in regard to canceliation, this defendant before the loss described in the complaint had occurred had cancelled and taken up the said policy and it was no longer in force, wherefore this defendant says that plaintiff ought not to have and recover in this action. [Continental Insurance Co. v. Parkes.] 10. And for the further answer to the complaint this defendant says that it never did issue any policy to Margaret N. Parkes, the plaintiff; that it did issue to one A. B. Parkes a policy of insurance of date October 29th, 1898, upon a certain dwelling house and furniture therein, with condition loss if any payable to Robert Mauchlin, mortgagee. That afterwards the said policy on the demand of this defendant notice of cancellation having been previously given was surrendered on to-wit, the 1st day of September, 1899, to this defendant and was duly cancelled and returned to this defendant and defendant says that for to-wit thirty days prior to the loss named in the complaint there was no policy issued by it in force, wherefore this defendant says that plaintiff ought not to have and recover by reason of any transaction in regard to said policy of insurance. 15.-Defendant says for answer to the complaint that on to-wit, Nov. 1st, 1898, this defendant issued to one A. B. Parkes a policy as described therein upon the property mentioned in the complaint upon his two story house valued at $1,800.00 and upon the furniture therein valued at $1,000.00, the said A. B. Parks being then the husband of plaintiff, that in and by the terms of the said policy loss if any made payable to Robert Mauchlin as mortgagee as his interest might appear, that afterwards on to-wit, Nov. 25th, 1898, the said Robert Mauchlin came into the office of the agent of defendant in Birmingham, Alabama, bringing said policy with him, and stated, that M. N. Parks was the owner of the property insured and that the name of the mortgagee was Janette Mauchlin and then and there the secretary of defendants agent one Charles Mell, at the instance of said Robert Mauchlin the said Mell then and there having authority of the defendant to do so attached to the face of said policy a green printed slip, stating in effect that M. N. Parks should be the name of the assured and that loss, if any, payable to Mrs. Janette Mauchlin as her interest may appear, that there was then present only the said Robert Mauchlin and the said Mell, that said Robert Mauchlin took away with him the said policy so changed, and defendant says that thereafter, the said Janette Mauchlin kept possession of said policy of insurance and it was [Continental Insurance Co. v. Parkes.] not thereafter in the possession of plaintiff; that by the terms of said policy defendant on notice for the space of five days had the right to cancel said policy, and that defendant on to-wit, August 24th, 1899, gave notice to Janette Mauchlin that it would cancel said policy, and on to-wit September 1st, 1899, on demand of the defendant the said Janette Mauchlin the mortgagee named in the said policy so altered surrendered said policy to the defendant and the same was by this defendant duly cancelled. Wherefore defendant says that, at the time when the said property alleged to have been insured was burned the said policy was not in force and plaintiff ought not to recover." There was evidence introduced tending to show hat the local agent of the defendant company had at various times performed acts not expressly conferred by the instrument appointing it as agent, which acts were not repudiated by the defendant company. There was evidence also introduced on behalf of the plaintiff which tended to show that the defendant company was connected with or a member of a tariff making association. There was other evidence introduced on behalf of defendant tending to show that it was not a member or in any wise connected with any such association. There were verdict and judgment in favor of the plaintiff. The defendant appeals and assigns as error the several rulings of the trial court to which exceptions were reserved. WARD & HOUGHTON, for appellant. (No brief came to the hands of the reporter.) conditions are WHITE & SONS, contra.-Where pleaded they must be clearly and distinctly averred. Chitty on Pleading, Volume 2, page 367, 16 Ed.; Enc. Pl. & Prac. Vol. 2, page 422; Mead v. Hughes, 15 Ala. 141. The plea averring that the policy by its terms could be cancelled after giving five days notice alleges that defendant had cancelled it without giving such notice to the assured, and is not sufficient.-1 Biddle on Ins. [Continental Insurance Co. v. Parkes.] Notice of section 372; 2nd May on Ins. section 356a. cancellation must be unambiguous and must show an unconditional and fixed determination to cancel and not a mere desire to cancel.-1st. Biddle on Ins. section 371. Section 2619 of the Code is valid and not unconstitutional. Tiedeman on Limitation of Police Power, page 251-315; State v. Phipps, 59 Kan. 699, 31 Pac. 1078, 18 L. R. A. 657, 34 Am. St. Rep. 152; Hartford F. Ins. Co. v. Raymond, (Mich.) 38 N. W. Rep. 474; Youngblood v. Bg'ham. T. & S. Co., 95 Ala. 521; Am. Ins. Co. of Chicogo v. Isaac Stay, (Ill.) I. N. W. Rep. 877; Stripling's case, 113 Ala. 120; Am. Co. v. Western Co., 67 Ala. 26; Mortgage Co. v. Ingram, 91 Ala. 340; Collier v. Davis, 94 Ala. 456; Ex Parte Byrd, 84 Ala. 17; Steiner v. Ray, 84 Ala. 93; Cook v. State, 110 Ala. 40; Munn v. Illinois, 94 U. S., 113; United States v. Jellico, 46 Fed. Rep. 432, 12 L. R. A. 753; State v. Firemen's Ins. Co., 152 Mo. 1. That no Federal question is involved, and that this statute is not violative of the Federal Constitution, see, Paul v. Virginia, 8 Wall. 168; Osborne v. Mobile, 16 Wall. 479; Munn v. Illinois, 94 U. S. 113; Steiner v. Ray, 84 Ala. 93; Merriman v. Knox, 99 Ala. 94. Notice of loss given to local agent of defendant company was sufficient notice to the company; Syndicate Ins. Co. v. Catchings, 104 Ala. 176; Biddle on Ins. Vol. 2, Sec. 1073-1078; Nichol v. Ins. Co., 144 Mo. 420; Wadham v. Western Ins. Co., 117 Mich. 514; Bernero v. Ins. Co., 4 Pac. Rep. 382; German Fire Ins. Co. v. Stewart, (Ind.) 42 N. E. Rep. 286; Federal cases Number 1321, 14 Blatch. 422: Harnden v. Milwaukee Ins. Co., (Mass.) 41 N. E. Rep. 658; 16 Am. & Eng. Enc. of Law, 2nd Ed. 942 b and cases cited. TYSON, J.-Action on policy of fire insurance. To the complaint the defendant interposed the plea of the general issue and a number of special pleas. Plea 8 to which a demurrer was sustained neither denies nor confesses and avoids the allegations of the complaint. The demurrer was properly sustained to it. Plea 9 was also faulty in not setting out the terms of the policy sued on, so that the court could determine the right of defendant to cancel it and thereby terminate |